Techdirt’s Mike Masnick On The Cox Lawsuit

(Hypebot) — Major labels have for some time been excited by the prospect of being able to use the DMCA to get Internet Service Providers to boot users from the internet, and suing them if they failed. The most prominent victim of this strategy has been ISP Cox, who is now the subject of a bombardment of lawsuits from all the major labels, writes Mike Masnick.

For years, we’ve noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.

That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O’Grady, who flat out mocked the idea that the internet was important, and made it clear he didn’t see any issue at all with banning people from the internet. Here’s how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:

I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.

The whole case was a complete mess — and it was made worse by some bad choices by Cox, including not really following its own stated DMCA repeat infringer policy. O’Grady’s ruling was bad, and unfortunately, the appeals court upheld it. However, at least the Appeals Court made it more or less clear that they weren’t saying every ISP had to kick people off the internet — but rather that Cox lost its DMCA safe harbors by not following its own DMCA policy. While much attention was paid to the claim that Cox’s policy amounted to a “13 strike” policy before you might lose access, the appeals court notes it’s not the number of strikes that matters, so much as whether or not the company follows its own policy — and Cox did not.

Of course, another part that came out during the trial is that Cox was getting so completely bombarded by Rights Corp takedown notices (which doubled as demands for money), that Cox felt it needed to put in place systems to deal with the spam, which included limiting how many notices it would accept each day. Between the ruling in the original BMG case, and the revelations about Cox’s own practices, the RIAA clearly sensed blood in the water, and a chance to prove its point. And, thus, it has a massive lawsuit against Cox. It’s basically all of the major labels using the earlier case as evidence of some grand conspiracy to profit off of piracy.

Cox is one of the largest Internet service providers (“ISPs”) in the country. It markets and sells high-speed Internet services to consumers nationwide. Through the provision of those services, however, Cox also has knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers, causing great harm to Plaintiffs, their recording artists and songwriters, and others whose livelihoods depend upon the lawful acquisition of music. Cox’s contribution to its subscribers’ infringement is both willful and extensive, and renders Cox equally liable. Indeed, for years, Cox deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others’ copyrights—even once Cox became aware of particular customers engaging in specific, repeated acts of infringement. Plaintiffs’ representatives (as well as others) sent hundreds of thousands of statutory infringement notices to Cox, under penalty of perjury, advising Cox of its subscribers’ blatant and systematic use of Cox’s Internet service to illegally download, copy, and distribute Plaintiffs’ copyrighted music through BitTorrent and other online file-sharing services. Rather than working with Plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders, thereby willfully blinding itself to any of its subscribers’ infringements that exceeded its “cap.”

Cox also claimed to have implemented a “thirteen-strike policy” before terminating service of repeat infringers but, in actuality, Cox never permanently terminated any subscribers. Instead, it lobbed “soft terminations” with virtually automatic reinstatement, or it simply did nothing at all. The reason for this is simple: rather than stop its subscribers’ unlawful activity, Cox prioritized its own profits over its legal obligations. Cox’s profits increased dramatically as a result of the massive infringement that it facilitated, yet Cox publicly told copyright holders that it needed to reduce the number of staff it had dedicated to anti-piracy for budget reasons.

Given the mess of how Cox handled DMCA notices and its repeat infringer policy, this case is going to be a tough one for it to fight off. But the actual stakes are huge. The RIAA wants to be able to kick people entirely off the internet based purely on accusations — even if they’re bullshit. We should be very concerned about it.

And to increase the level of concern: this new case has been assigned to… Judge Liam O’Grady. Needless to say, we’ll be watching it closely.

John Page, general manager of the SMG-managed Greater Columbus Convention Center, was selected by his peers for his leadership, business and civic contributions and will be included among the 2018 Most Admired Chief Operating Officers by Columbus Business First. Authorities say the Rascal Flatts concert that was promptly halted last week in Indiana was because of a bomb threat that was deemed a credible danger. Some folks arrived at the PPG Paints Arena in Pittsburgh Aug. 6 for a Shawn Mendes concert only to realize the show was Aug. 6, 2019.

So, we got tickets for the Shawn Mendes concert on August 6. However, getting here we realized it was for 2019. And we weren’t the only ones! We will be back next year! pic.twitter.com/LXmgm6ySIC

When Jay-Z and Beyoncé arrive in Columbia later this month to play a show at the 80,000-seat football stadium at University of South Carolina, some kids will get a break, with the school district dismissing six schools early because of traffic concerns ... Atlanta rapper Killer Mike has joined the board of the city's High Museum of Art, saying he plans to help grow and diversify its audience (Keinon Johnson of Interscope Records has also joined the 85-member panel)... Despite being barred from leaving Russia, Pussy Riot activist Maria Alyokhina has left anyway and is traveling to the U.K.'s Edinburgh Fringe festival to do a performance based on her book, according to a statement from the Pussy Riot punk collective ... Justin Timberlake has announced his book "Hindsight" that will have photos of his childhood and will be "spotlighting some of the important people and places that have informed my music" ...

Ticketmaster helps get a Pittsburgh family to a Taylor Swift show after getting scammed out of tickets that came through their site .. The official hotel for Red Rocks Amphitheatre near Denver, a 124-room with a restaurant called Origin Red Rocks, is expected to debut tomorrow. Louisville, Ky., is holding its DeaFestival-Kentucky 2018 festival, an event hard-of-hearing and deaf culture featuring more than 50 visual and performing artists, next month at the city's Galt House ... The Yelm UFO Fest and Symposium, a three-day festival near Mt. Rainier, Wash., that includes a stage featuring jazz, blues, rock, interpretive dance, etc., plus all things involving little green men, has wrapped (last year's event, which takes place near the very first UFO sighting in 1947, included a "blatant mid-day sighting" of UFOs that dubbed the event "the UFO fest where the UFOs actually show up").

John Page, general manager of the SMG-managed Greater Columbus Convention Center, was selected by his peers for his leadership, business and civic contributions and will be included among the 2018 Most Admired Chief Operating Officers by Columbus Business First. Authorities say the Rascal Flatts concert that was promptly halted last week in Indiana was because of a bomb threat that was deemed a credible danger. Some folks arrived at the PPG Paints Arena in Pittsburgh Aug. 6 for a Shawn Mendes concert only to realize the show was Aug. 6, 2019.

So, we got tickets for the Shawn Mendes concert on August 6. However, getting here we realized it was for 2019. And we weren’t the only ones! We will be back next year! pic.twitter.com/LXmgm6ySIC

When Jay-Z and Beyoncé arrive in Columbia later this month to play a show at the 80,000-seat football stadium at University of South Carolina, some kids will get a break, with the school district dismissing six schools early because of traffic concerns ... Atlanta rapper Killer Mike has joined the board of the city's High Museum of Art, saying he plans to help grow and diversify its audience (Keinon Johnson of Interscope Records has also joined the 85-member panel)... Despite being barred from leaving Russia, Pussy Riot activist Maria Alyokhina has left anyway and is traveling to the U.K.'s Edinburgh Fringe festival to do a performance based on her book, according to a statement from the Pussy Riot punk collective ... Justin Timberlake has announced his book "Hindsight" that will have photos of his childhood and will be "spotlighting some of the important people and places that have informed my music" ...

Ticketmaster helps get a Pittsburgh family to a Taylor Swift show after getting scammed out of tickets that came through their site .. The official hotel for Red Rocks Amphitheatre near Denver, a 124-room with a restaurant called Origin Red Rocks, is expected to debut tomorrow. Louisville, Ky., is holding its DeaFestival-Kentucky 2018 festival, an event hard-of-hearing and deaf culture featuring more than 50 visual and performing artists, next month at the city's Galt House ... The Yelm UFO Fest and Symposium, a three-day festival near Mt. Rainier, Wash., that includes a stage featuring jazz, blues, rock, interpretive dance, etc., plus all things involving little green men, has wrapped (last year's event, which takes place near the very first UFO sighting in 1947, included a "blatant mid-day sighting" of UFOs that dubbed the event "the UFO fest where the UFOs actually show up").

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